Citation Nr: 9936219
Decision Date: 12/30/99 Archive Date: 01/04/00
DOCKET NO. 95-30 356 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a claim for entitlement to service connection for an
acquired psychiatric disorder.
2. Entitlement to service connection for hypertension.
3. Entitlement to an increased rating for mitral valve
prolapse, currently evaluated as 10 percent disabling.
4. Entitlement to an increase rating for headaches, mixed
type, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARINGS ON APPEAL
Veteran and spouse
ATTORNEY FOR THE BOARD
Michael A. Holincheck, Associate Counsel
INTRODUCTION
The veteran served on active duty from February 1971 to
November 1972 and from March 1975 to September 1982.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating decisions by the Department of
Veterans Affairs (VA) Regional Office (RO) in Chicago,
Illinois.
The Board notes that the veteran submitted several
statements, dated in May 1997, along with medical billing
from St. Joseph Medical Center and Bloomington Medical
Laboratory. He indicated that he incurred costs for
treatment from the private hospital and laboratory facility
in conjunction with his service-connected disabilities. He
expressed a comment that VA should pay the bills. The Board
construes the veteran's submission as a claim for
reimbursement for medical expenses. This issue, however, is
not currently developed or certified for appellate review.
Accordingly, this matter is referred to the RO for
appropriate consideration.
FINDINGS OF FACT
1. Service connection for a nervous condition, to include
depression, was denied in an unappealed June 1986 rating
decision.
2. Evidence received since the June 1986 decision, when
considered alone or in conjunction with all of the evidence
of record, is new and probative of the issue at hand, and of
such significance that it must be considered in order to
fairly decide the merits of the claim.
CONCLUSIONS OF LAW
1. Evidence received since the June 1986 RO decision is new
and material; the veteran's claim for entitlement to service
connection for an acquired psychiatric disorder is reopened.
38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999).
2. The claim of entitlement to service connection for an
acquired psychiatric disorder is well grounded. 38 U.S.C.A.
§ 5107 (West 1991)..
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran served on active duty from February 1971 to
November 1972 in the Army, and from March 1975 to September
1982 in the Navy. Service medical records (SMRs) from the
veteran's first period of service contain no pertinent
findings.
The SMRs from the veteran's naval service reflect that he was
treated for anxiety and depression in August 1979. He had a
two week history of nervousness and difficulty sleeping. A
psychiatric consultation revealed that the veteran had
recently been relieved as a company commander training
recruits. The veteran had been assigned to that duty against
his wishes. The examiner reported that the veteran exhibited
some somatization, notably headaches, when under stress.
There was no evidence of mental illness, or organic brain
syndrome. The assessment was situational anxiety.
A clinical entry, dated in September 1979, noted that the
veteran was returned to company commander duties and
experienced a persistence of his prior symptoms. He was then
relieved of his duties and the symptoms diminished. The
impression was occupational maladjustment manifested by
moderate anxiety and tension headaches. After being relieved
of his duties the appellant's anxiety and tension were said
to resolve.
The veteran was hospitalized from September 1980 to October
1980 for evaluation of complaints of sudden onset of
blindness in the left eye. The veteran was then transferred
to the National Naval Medical Center (NNMC) in Bethesda,
Maryland, where he was evaluated from October to December
1980. His primary reason for referral was for a neurological
evaluation pertaining to his visual complaints, migraine
headaches, and mitral valve prolapse. However, he also was
admitted to the psychiatric ward and evaluated. No
psychiatric diagnosis was provided and the veteran was
discharged, with a recommendation of a return to full duty.
Subsequent medical entries reflect that the veteran was
ultimately discharged from service in September 1982 for
failure to maintain required weight standards. There was a
reference to situational anxiety on his September 1982
discharge physical examination's Report of Medical History.
In November 1982, the appellant was hospitalized after over
dosing on Inderal. Mental status examination revealed no
evidence of suicidal ideation, and the appellant did not
appear to be psychotic. The diagnosis at discharge was an
adjustment disorder with mixed features.
The appellant was seen for VA examinations in January 1983
and 1984. The diagnoses were an adjustment disorder with
mixed features, and an adjustment disorder with depressed
mood. Much of the appellant's depression was noted to be
associated with an unsatisfactory marital relationship.
The veteran originally filed a claim for service connection
for a "nervous condition" in December 1982. His claim was
denied in August 1983, with notice of the denial provided in
September 1983. His claim was again denied, based upon
receipt of new medical evidence, in March 1984.
In January 1986, the veteran submitted a claim for service
connection for depression. His claim was denied in June
1986, with notice of the denial dated that same month. The
veteran failed to perfect an appeal of the rating decision
and it became final. 38 U.S.C.A. § 7105 (West 1991).
Accordingly, the veteran's claim may only be reopened and
considered on the merits if new and material evidence has
been submitted. See 38 U.S.C.A. § 5108; 38 C.F.R.
§ 3.156(a).
New and material evidence means evidence not previously
submitted to agency decisionmakers which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and which by
itself or in connection with evidence previously assembled is
so significant that it must be considered in order to fairly
decide the merits of the claim. Id.
New and material evidence must be presented or secured since
the time that the claim was finally disallowed on any basis.
Evidence presented since the last final disallowance need not
be probative of all elements required to award the claim, but
need be probative only as to each element that was a
specified basis for the last disallowance.
The United States Court of Appeals for Veterans Claims
(Court) has held that VA must first determine whether the
veteran has presented new and material evidence under
38 C.F.R. § 3.156(a) in order to have a finally denied claim
reopened under 38 U.S.C.A. § 5108. Elkins v. West, 12 Vet.
App. 209 (1999). If new and material evidence has been
presented, immediately upon reopening the claim VA must
determine whether, based upon all the evidence of record, the
claim is well grounded pursuant to 38 U.S.C.A. § 5107(a). If
the claim is well grounded, VA may then proceed to evaluate
the merits of the claim but only after ensuring that the duty
to assist under 38 U.S.C.A. § 5107(b) has been filled. Id.
at 218.
Evidence that was of record at the time of the RO's June 1986
denial consisted of: the veteran's SMRs; VA discharge
summary for the period from November to December 1982; VA
examinations dated in January 1983, September 1983, January
1984, and September 1985; and, VA treatment records dated
from November 1982 to May 1986.
Based on the foregoing evidence, the RO denied the veteran's
claim in March 1984 because it was determined that an
adjustment disorder was a developmental condition and not
subject to VA disability compensation. The RO denied the
veteran's claim in June 1986 because there was no nexus to
service for the veteran's diagnosed depression.
In June 1992, the veteran submitted a request to reopen his
claim. The Board notes that since the June 1986 RO decision,
the evidence added to the file includes: (1) VA examination
reports dated in March 1988, February 1992, and April 1992;
(2) VA treatment records for the period from April 1988 to
June 1992; (3) private treatment records from Brokaw Hospital
dated in November 1982, (4) private treatment records from
Lakeland Hospital for the period from April 1984 to January
1986; (5) private treatment records from St. Joseph's
Hospital Medical Center dated from April 1988 to January
1993; (6) Social Security Administration (SSA) records
received in December 1992; (7) transcript of hearing
testimony at RO in February 1993; (8) VA discharge summaries
dated in March 1988, April 1988, August 1988, October 1991,
June 1992, and April 1997; (9) statement from VA Chief,
Mental Health Clinic, VA outpatient facility, Peoria,
Illinois, dated in February 1999; (10) transcript of
testimony at video conference hearing dated in July 1999;
and, (11) statements from the veteran.
Without engaging in a long discussion of the particulars of
the evidence, the Board finds that the evidence submitted
since the June 1986 RO rating decision, constitutes new and
material evidence. Specifically, the Brokaw Hospital
discharge summary documents that the veteran was hospitalized
for a suicide attempt in November 1982, some two months after
discharge. The appellant was diagnosed with a depressive
reaction, (manifested by an) attempted suicide. The records
from Lakeland and St. Joseph's hospital, as well the VA
discharge summaries, document an ongoing psychiatric problem
for the veteran since 1982. The SSA records contain a May
1988 evaluation from Owen Deneen, M.D., that noted that the
veteran had a long history of depression. Dr. Deneen treated
the veteran in November 1982 at his Brokaw Hospital
admission. Finally, the statement from the Chief of the VA
outpatient Mental Health Clinic related, after a review of
some of the veteran's SMRs, provided a nexus between the
veteran's current diagnosis and his military service. In
addition, the Board notes that adjustment disorder was a
ratable psychiatric disability included in the VA's Schedule
for Rating Disabilities based upon changes to the rating
schedule in January 1988. 54 Fed.Reg. 23 (1988). The
appellant is entitled to the version of the regulation which
is most favorable to him. See Karnas v. Derwinski, 1 Vet.
App. 308, 312 - 330 (1991) (where the law or regulations
change while a case is still pending, the version most
favorable to the claimant applies, absent congressional
intent to the contrary).
The U. S. Court of Appeals for the Federal Circuit in Hodge
v. West, 155 F.3d 1356 (Fed. Cir. 1998), changed the
controlling law for determining when new and material
evidence has been submitted. The Federal Circuit struck down
the standard previously relied upon by the RO in its July
1992 denial of the veteran's claim to reopen and noted that
the analysis of whether new and material evidence had been
submitted was limited to the application of 38 C.F.R.
§ 3.156(a). Moreover, Hodge stressed that under the
regulation new evidence that was not likely to convince the
Board to alter its previous decision could be material if
that evidence provided a "more complete picture of the
circumstances surrounding the origin of a veteran's injury or
disability, even where it will not eventually convince the
Board to alter its ratings decision." Id. at 1363. The
Federal Circuit noted that "the regulation imposes a lower
burden to reopen than the Colvin [v. Derwinski, 1 Vet. App.
171 (1991)] test." Id. at 1361, n.1.
In light of the Federal Circuit's holding in Hodge the Board
finds that the evidence submitted since the RO's June 1986
decision is new and material. The Board further finds that
the claim is well grounded in light of the VA physician's
February 1999 statement. See Elkins; Winters v. West, 12
Vet. App. 203, 206-7 (1999).
ORDER
The veteran has submitted new and material evidence, and his
claim for entitlement to service connection for an acquired
psychiatric disorder is reopened.
REMAND
In regard to the veteran's claims for increased ratings for
service-connected mitral valve prolapse and headaches, the
Board notes that the veteran has not been afforded a VA
compensation and pension examination in some time. The
veteran has also alleged that his hypertension is aggravated
by his service-connected mitral valve prolapse. See Allen v.
Brown, 7 Vet. App. 439 (1995). However, that aspect of the
claim has not yet been adjudicated. Further, the veteran
testified at his video conference hearing in July 1999 that
he received routine care from VA for both service-connected
disabilities, however, the referenced treatment records were
not associated with the claims file. Further development is,
therefore, in order.
The veteran also testified that he was in receipt of SSA
disability benefits. The Board notes that the records used
by the SSA to adjudicate the veteran's claim are contained in
the claims file, and consist of mostly VA records. However,
a copy of the administrative law judge or administrative
decision in the veteran's case is needed before the Board
enters a final decision.
Finally, having reopened the veteran's claim for entitlement
to service connection for an acquired psychiatric disability,
the Board finds that a new VA examination is required in
order to fairly assess his current condition and any possible
relationship to his psychiatric problems in service, and
immediately after service.
In light of the above developments, the veteran's case is
REMANDED for the following action:
1. The veteran should be contacted and
requested to identify the names,
addresses, and approximate dates of
treatment for all health care providers,
both VA and private, who may possess
additional records pertinent to his
claims of entitlement to service
connection for hypertension, and a
psychiatric disorder; as well as the
claims of entitlement to increased
ratings for mitral valve prolapse, and
headaches. After securing any necessary
authorization from the veteran, the RO
should attempt to obtain copies of those
treatment records identified which have
not been previously secured.
2. The SSA should be contacted and
requested to provide copies of any
administrative law judge decision
granting disability benefits to the
appellant. All attempts to secure this
information, and replies from SSA, must
be documented in the claims file.
3. Thereafter, the veteran should be
scheduled for VA neurologic and
cardiovascular examinations, to be
conducted by physicians, in order to
assess the nature and extent of his
headache disorder and mitral valve
prolapse. The cardiologist must provide
an opinion whether it is as least as
likely as not that hypertension is caused
or worsened by mitral valve prolapse,
medications necessary to treat mitral
valve prolapse, or by a currently
nonservice connected psychiatric
disorder. The claims file and a complete
copy of this REMAND order must be made
available to and be reviewed by the
examiners in conjunction with the
examinations. The examination reports
should be typed.
4. The veteran should also be scheduled
for a VA psychiatric examination in order
to determine the nature and etiology of
any current psychiatric disability. The
claims file and a complete copy of this
REMAND order must be made available to
and be reviewed by the psychiatrist in
conjunction with the examination. The
psychiatrist must determine the nature
and etiology of all diagnosed psychiatric
disabilities. In the report the
psychiatrist must provide opinions in
response to the following questions:
Does the veteran have an acquired
psychiatric disability? If so, is it at
least as likely as not, that the current
psychiatric disability is related to the
veteran's period of naval service from
March 1975 to September 1982?
5. After undertaking any development
deemed appropriate, the RO should review
the examination reports. If the reports
are not in complete compliance with the
instructions provided above, appropriate
action should be taken.
6. Thereafter, the RO should then
readjudicate the claims of entitlement to
service connection for an acquired
psychiatric disorder and hypertension, on
both direct and secondary bases,
including under a theory of aggravation.
The claims of entitlement to increased
ratings for mitral valve prolapse and
headaches should also be readjudicated.
If the benefits sought on appeal are not
granted to the veteran's satisfaction,
the RO should issue a supplemental
statement of the case. The veteran and
his representative should then be
provided an opportunity to respond.
Thereafter, the case should be returned to the Board for
further appellate consideration, if otherwise in order. By
this REMAND, the Board intimates no opinion as to any final
outcome warranted. No action is required of the veteran
until he is otherwise notified by the RO.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
DEREK R BROWN
Member, Board of Veterans' Appeals